| Matter of Eddie v DiNapoli |
| 2010 NY Slip Op 03028 [72 AD3d 1326] |
| April 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of Alberto R. Eddie, Petitioner, v Thomas P.DiNapoli, as Comptroller of the State of New York, Respondent. |
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Garry, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of respondent whichdenied petitioner's applications for accidental disability and performance of duty disabilityretirement benefits.
Petitioner, a 23-year veteran firefighter employed by the City of Yonkers in WestchesterCounty, applied for accidental disability retirement benefits pursuant to Retirement and SocialSecurity Law § 363 and performance of duty disability retirement benefits pursuant toRetirement and Social Security Law § 363-c, arising out of two unrelated incidents inwhich he was allegedly injured while engaged in his regular job duties. The New York State andLocal Police and Fire Retirement System denied both applications. Following an administrativehearing, a Hearing Officer determined that neither incident constituted a qualifying event foraccidental disability retirement benefits and that petitioner was not permanently incapacitatedfrom the performance of his duties as a firefighter. Respondent accepted the Hearing Officer'sfindings, and petitioner [*2]commenced this CPLR article 78proceeding seeking review of respondent's determination.
Petitioner was required to prove that he was permanently incapacitated from performing hisjob duties both for the purpose of obtaining accidental disability retirement benefits (see Matter of Stern v DiNapoli, 57AD3d 1076, 1077 [2008]; Matterof Wilson v New York State & Local Police & Fire Retirement Sys., 53 AD3d 762, 763[2008]) and performance of duty disability retirement benefits (see Matter of Quigley v Hevesi, 48AD3d 1023, 1024-1025 [2008]; Matter of Davenport v McCall, 5 AD3d 850, 851 [2004]). Indetermining whether that burden was met, respondent "is vested with the authority to weighconflicting medical evidence and to credit the opinion of one expert over another" (Matter of Rolandelli v Hevesi, 27AD3d 945, 946 [2006]; see Matterof Macri v DiNapoli, 56 AD3d 936, 937 [2008]). Here, although petitioner'schiropractor opined that he was permanently incapacitated, neither his neurosurgeon nor hisneurologist found any permanent disability. An orthopedic surgeon who examined petitioner andreviewed his medical records on behalf of the Retirement System found no objective evidence ofdisability, opining that petitioner's symptoms had resolved and that he was able to perform theduties of his position. " '[A]n expert opinion based on a review of medical records and a physicalexamination is generally credible evidence upon which respondent may rely' " (Matter of Schine v Hevesi, 40 AD3d1362, 1363 [2007], quoting Matter of Harper v McCall, 277 AD2d 589, 590[2000]). Respondent's determination was "supported by substantial evidence in the form of arational and fact-based, articulated medical opinion" and, as such, will not be disturbed (Matter of Salik v New York State & LocalEmployees' Retirement Sys., 69 AD3d 1029, 1030 [2010]; see Matter of Kratunis v DiNapoli, 60AD3d 1250, 1251 [2009]). Petitioner's remaining assertion that the two workplace incidentsin which he was injured constituted qualifying events for accidental disability retirement benefitsare rendered academic by this decision (see Matter of Weeks v New York State Comptroller, 68 AD3d1427, 1429 [2009]; Matter ofMylchreest v Hevesi, 32 AD3d 648, 650 [2006]).
Peters, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.